WISCONSIN
SUPREME COURT

CALENDAR AND CASE SYNOPSES

NOVEMBER, 2012

PLEASE
NOTE: The cases below scheduled for Nov.
5 will be heard at the Green County Justice Center as part of the Supreme
Court’s Justice on Wheels program. The
Green County Justice Center is located at 2841 Sixth St., Monroe. Cases
scheduled for Nov. 6 will be heard in the Wisconsin Supreme Court Hearing Room,
231 East, State Capitol.

This calendar includes cases that originated
in the following counties:

Dane

Milwaukee

Monroe

Racine

Wood

MONDAY, NOVEMBER 5, 2012(MONROE)

9:30 a.m.10AP2003-CR-State
v. Courtney C. Beamon

11:00
a.m.12AP544-W-Office
of the State Public Defender v. Court of Appeals, District IV

TUESDAY, NOVEMBER 6, 2012(MADISON)

9:45
a.m.09AP2432-Acuity
v. Society Insurance

10:45 a.m.11AP914-Estate
of Danny L. Hopgood v. Jimmy D. Boyd

1:30 p.m.09AP284-D-Office
of Lawyer Regulation v. Alan D. Eisenberg

In
addition to the cases listed above, the following case is assigned for
decision without oral argument, based upon the submission of briefs:

11AP478-D-Office
of Lawyer Regulation v. Benjamin J. Harris

The Supreme Court calendar may change between the time
you receive these synopses and when the cases are heard.It is suggested that you confirm the time and
date of any case you are interested in by calling the Clerk of the Supreme
Court at 608-266-1880. That office will also have the names of the attorneys
who will be arguing the cases.

If any special access, visual or hearing arrangements are
necessary for your attendance, please advise the Clerk’s Office by phone or
send an e-mail message in advance to clerk@wicourts.gov

Radio
and TV, and print media wanting to take photographs, must make media requests
72 hours in advance by calling Supreme Court Media Coordinator Rick Blum at
608-271-4321. Summaries provided are not complete analyses of the issues
presented.

WISCONSIN
SUPREME COURT

MONDAY,
NOVEMBER 5, 2012

9:30
a.m. (Monroe)

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Racine County Circuit Court
decision, Judge Emily S. Mueller, presiding.

This criminal case, which
involves charges of fleeing and eluding an officer, examines whether the
sufficiency of the evidence used to convict someone should be measured against
the instructions actually given to the jury, or against the statutory elements
of the crime.

Some background: At approximately
12:45 a.m. on Nov. 19, 2007, two off-duty Racine police officers heard gunshots
while working security at the American Legion Bar.While investigating the source of the shots,
one officer heard additional shots and saw someone leave a porch and get into a
vehicle that drove away.The officer
described the vehicle to police dispatch, and an officer in a squad car began
to follow the suspect vehicle, which did not have its headlights on.

The vehicle did not slow down or
yield after the activation of the squad car’s lights and siren, and proceeded
through an intersection with a stop sign without slowing down.After passing through the intersection, the
driver’s door opened and the driver rolled out.The driverless vehicle continued rolling down the street until it
crashed into a parked vehicle. The individual who rolled out of the vehicle and
was subsequently caught by the police was Courtney C. Beamon.

The state ultimately charged
Beamon with eight separate criminal counts, all as a habitual offender.A jury found Beamon guilty of all eight
counts.The only count that Beamon challenged
on appeal was the count that charged him with fleeing or eluding an officer, in
violation of Wis. Stat. § 346.04(3).

Beamon asserted that, under the
instructions given to the jury, the state had to prove that he had increased
the speed of his vehicle to flee.Since
there was no evidence that he had ever increased his speed, he asserted that
the state had failed to provide sufficient evidence on that element of the
offense.He argued that the jury
instructions, as given, provide the law of the case and govern the review of
the sufficiency of the evidence.

The state argued, and the Court
of Appeals agreed, that the evidence should be evaluated in light of the
statutory elements of the offense, not the instructions actually given to the
jury.

The Court of Appeals viewed the
jury instruction as containing an extra element (increasing speed) that was not
necessary to the jury’s verdict.It
therefore looked to the harmless error rule adopted by the Supreme Court in State
v. Harvey, 2002 WI 93, ¶49, 254 Wis. 2d 442, 647 N.W.2d 189, which provides
that “[a] constitutional or other error is harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the error.’”

The Court of Appeals determined
that the evidence was strong enough that “it is clear beyond a reasonable doubt
that a rational jury would have found [Beamon] guilty absent the error.”The Court of Appeals pointed out, among other
things, that while police pursued Beamon withsquad lights and siren activated, Beamon drove 45-50 miles per hour in a
30 mile-per-hour zone at night with his lights off.Moreover, Beamon drove through a stop sign
and rolled out of the car, leaving it to crash into a parked vehicle.The Court of Appeals concluded that this
evidence met the statutory elements.

A decision by the Supreme Court
could clarify how sufficiency reviews should be performed – by measuring the
evidence against the instructions as actually given or against the information
(i.e., the charging document) or against the statute defining the offense.

WISCONSIN
SUPREME COURT

MONDAY,
NOVEMBER 5, 2012

11:00
a.m. (Monroe)

This is
a petition for supervisory writ, which is simply a type of order. A person may
request the Supreme Court to issue a supervisory order to a lower court and the
judge presiding therein under certain circumstances. See Wis. Stat. §§ 809.51 and 809.71. In this case, the State Public
Defender has asked the Supreme Court to review a decision of the Wisconsin
Court of Appeals, District IV (headquartered in Madison) and to order the Court
of Appeals to take certain actions. The underlying case originated in Wood
County Circuit Court, Judge James M. Mason, presiding.

2012AP544-W State Public Def. v.
COA, Dist. IV

In this case, the Supreme Court
will hear arguments on whether post-conviction/appellate defense counsel must
obtain permission from a circuit court to access, cite to, or discuss the
contents of a pre-sentence investigation report (PSI) in a post-conviction or
appellate brief or hearing.

The State Public Defender (SPD)
has asked the Supreme Court to issue a supervisory writ, ordering the Court of
Appeals to allow counsel for a criminal defendant to access, cite to, and
discuss the PSI in appellate briefs without first obtaining permission from the
circuit court. A decision by the Supreme Courtis expected to clarify the law and help judges and lawyers handling
future criminal cases.

Some background: The SPD’s writ
petition was filed in response to District IV Court of Appeals’ order denying
the SPD’s and the state’s motions for authorization from the Court of Appeals
to cite and discuss Michael Buchanan’s PSI in his criminal appeal.

Buchanan had pled no contest to
one count of first-degree sexual assault of a child and one count of child
enticement, both with a dangerous weapon modifier.Prior to sentencing Buchanan filed a motion
to strike certain parts of the PSI.The
circuit court granted the motion in part and denied it in part. The court then
imposed consecutive sentences of 25 years and 15 years.

Assistant SPD Steven Grunder was
appointed to represent Buchanan on appeal.The SPD’s writ petition states that Grunder filed a motion with the
Court of Appeals asking for authorization to cite parts of the PSI, although
the SPD asserts that such a motion was unnecessary. The motion asserted that
Buchanan would need to include excerpts of the PSI in his appellate brief in
order to present his claims on appeal.The motion further stated that the excerpted portions would contain no
confidential information about the victim or the victim’s family and that
Buchanan’s brief would refer to sources of information in the PSI only by their
initials.

On Nov. 30, 2011, the Court of
Appeals granted the motion filed by Grunder. Grunder then filed Buchanan’s
brief consistent with the scope of reference to the PSI requested in the
motion.

The state then filed its own
motion in the Court of Appeals, noting that the state’s practice since State
v. Parent, 2006 WI 132, 298 Wis. 2d 63, 725 N.W.2d 915, has been to seek
permission from the circuit court when it wants to cite a PSI in its appellate
briefs.It further stated that the Court
of Appeals’ order granting Buchanan’s motion gave the impression that
permission from the circuit court was not necessary.It then requested that it be allowed to
examine and quote the PSI in the same manner as had been granted to Grunder.

In light of the state’s motion,
the Court of Appeals vacated its Nov. 30, 2011 order and now ordered Buchanan’s
counsel (SPD) and the state to file motions seeking permission from the circuit
court.

The Court of Appeals asserts, in
part, that the law is clear that such permission must be sought from the
circuit court.It contends that the
statement in Wis. Stat. § 972.15(2) that the circuit judge “shall disclose
the contents of the report to the defendant’s attorney and the district
attorney prior to sentencing” means that the circuit court is the master of the
PSI and that the parties are not automatically entitled to it.

The SPD’s petition lists the
following single issue:

Is
post-conviction counsel required to first seek circuit court permission to
“access, cite to, and quote from a PSI report” before litigating a PSI-related
sentencing issue where: (1) by statute post-conviction counsel have a right to
have and keep a copy of a PSI report; (2) due process requires that a defendant
be permitted to challenge, deny or explain information in a PSI report; and (3)
counsel must by operation of law and not circuit court permission or discretion
keep the PSI report “confidential” as defined in Wis. Stat. § 809.81(8)?

WISCONSIN
SUPREME COURT

TUESDAY,
NOVEMBER 6, 2012

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which reversed a Monroe County Circuit Court
decisions, Judge Michael J. McAlpine, presiding.

This case examines whether
damages arising from faulty construction work performed by a contractor
qualifies as an “occurrence” under the terms of a commercial general liability
(CGL) insurance policy.

Some background: Ron Stoikes
d/b/a RS Construction, and Terry Luethe d/b/a Flint’s Construction, entered
into an $8,500 contract with VPP Group LLC to remove and reinstall a concrete
wall on the south side of a building containing VPP’s engine room, which
provided refrigeration and utility services to the company’s animal processing
plant.

VPP supplied all materials, and
RS and Flint provided all labor.Work
began in May 2006.RS shored up the
engine room and removed the existing wall to grade level.The VPP processing plant continued at full
operation during the phase of the work.

On June 12, 2006, during Flint’s
excavation of a trench adjacent to the south wall site, the soil began to erode
from under the concrete slab of the first floor of the engine room.As a result, the engine room’s first floor
slab cracked and a portion deflected downward, as did a portion of the second
floor and roof. The engine room’s masonry walls adjacent to the south wall also
sustained damage, disrupting utility service and reducing the plant’s
refrigeration capacity. As a result, VPP incurred costs of approximately
$380,000.

VPP repaired the engine room by
replacing the portion of the first floor concrete slab that had cracked,
jacking up the second floor, and replacing portions of the roof slab.VPP contacted its insurer, Acuity, following
the loss.Acuity paid a total of
$636,466.39 to VPP in final settlement of the loss claims, including the
$380,000 claimed for extra expenses and damages relating to the repair of the
building, excluding costs to VPP related to replacing the south wall. Acuity
commenced a subrogation action against RS, Flint, and their insurer, Society
Insurance, seeking to recover damages arising from the engine room collapse.

The circuit court concluded the
CGL policy did not provide coverage because there was no “occurrence.”The Court of Appeals concluded the damages
suffered by VPP were the result of an “occurrence.”The Court of Appeals also concluded the
economic loss doctrine did not bar coverage and that no business risk exception
in the policy applied.

Society argues the Court of
Appeals’ decision is in direct conflict with a Court of Appeals decision in
another case, Yeager v. Society Insurance (2010AP2733).

Society points out that in Yeager,
the Court of Appeals held that faulty workmanship was not an “occurrence” and
that the damage caused by the faulty workmanship could not itself be the
“occurrence” while the Court of Appeals in this case came to the opposite
conclusion.Society goes on to argue
that the Court of Appeals’ interpretation of Exclusions k.(5) and k.(6) was very
narrow and in fact is contrary to the plain language of the exclusions.

Society asks the Supreme Court to
review:

-if “faulty workmanship” is not an “occurrence” under
a general liability insurance policy, then may an occurrence be found solely from
the bad result caused by the faulty workmanship?

-if the exclusion, found in all general liability
policies, precluding coverage for damage to property on which the insured is
performing operations, limited solely to that specific property on which work
is being done at the time of the property damage, or does the exclusion apply
to all of the property within the insured’s control and responsibility?

-When a claim clearly falls within the economic loss
doctrine, and therefore may only be brought as a breach of contract, and not a
tort claim, is there insurance coverage under a standard general liability
policy for the breach of contract claim?

WISCONSIN
SUPREME COURT

TUESDAY,
NOVEMBER 6, 2012

10:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District IV
(headquartered in Madison), which affirmed Dane County Circuit Court decisions,
Judge Daniel R. Moeser, presiding.

2011AP914 Est.
of Hopgood v. Boyd

This case involves a claim
against the state of Wisconsin arising from an accident involving a state-owned
vehicle that was driven by a state prison inmate when it rolled over on the
highway, resulting in the death of one passenger and injuring four others.

The Supreme Court examines what
constitutes an oath for purposes of complying with Wis. Stat. § 893.82, which
dictates the process and requirements for filing a claim against the
state.

Essentially, the issue raised in
the petition is whether the plaintiffs properly “swore to” the contents of
their notices of claim and thereby strictly complied with § 893.82, Stats., and
the requirements of Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d
685 (1995).

Some background: On June 17,
2009, Danny Hopgood, Perry Macon, Aaron Stroud, John Odom, Jr., and Michael
Sensy were all passengers in a vehicle owned by the state of Wisconsin and
being driven by Jimmy D. Boyd, then an inmate in the Wisconsin Prison
System.Boyd lost control of the vehicle,
which traveled off the roadway and rolled several times.All passengers were seriously injured and
Hopgood died as the result of his injuries.

As required by § 893.82, Stats.,
the plaintiffs filed notices of claim with the state of Wisconsin within 120
days of the accident. All of the notices were notarized and contained an oath,
swearing to the truth of the statements in the claims and acknowledging
potential penalties for false swearing.

In lieu of filing an answer, Boyd
filed a motion to dismiss.The motion
argued, among other things, that the plaintiffs failed to strictly comply with
§ 893.82 because, although the body of the notices of claim contained a
statement that an oath had been taken, the fact that the statement was within
the body of the notice and not within the notary public’s signature block,
rendered the notices defective.

In opposing the motion, the
plaintiffs argued that in Kellner, this court held that in order for a notice
of claim to strictly comply with the statute, the notice must contain a formal
oath or affirmation as to the truthfulness of the claim and a statement in the
notice that the oath or affirmation occurred.The plaintiffs argued because their notices of claim contained all
elements required by Kellner, the motion to dismiss should be
denied.

Relying on Kellner and Newkirk
v. Dept. of Transp., 228 Wis. 2d 830, 598 N.W.2d 610 (Ct. App. 1999), the
circuit court held that in order to strictly comply with the statute, the
notary public’s signature block must contain an acknowledgment that an oath was
taken and having such a statement in the body of the notice was not
sufficient.

The plaintiffs filed a motion for
reconsideration and clarification, arguing that there was no question but that
the plaintiffs swore to the contents of their notices of claim.The circuit court heard oral argument on the
motion for reconsideration and denied it.The plaintiffs appealed, and the Court of Appeals summarily
affirmed.

The Court of Appeals said it was
undisputed that each of the notices of claim contained a statement by the
claimant that the notary who signed the notice had given the claimant an oral
oath, and it was also undisputed that none of the notices of claim contained a
statement by the notary who witnessed it that the notice was sworn to under
oath.

The plaintiffs argue that the
Court of Appeals’ decision in Newkirk impermissibly extended the
requirements established by this court in Kellner as to when a claim is
properly “sworn to” for purposes of § 893.82(5).

WISCONSIN
SUPREME COURT

TUESDAY,
NOVEMBER 6, 2012

1:30
p.m.

The
Wisconsin Supreme Court is responsible for supervising the practice of law in
the state and protecting the public from misconduct by lawyers.Lawyers must follow a code of ethics
developed by the Court.When there is an
allegation that a lawyer has acted unethically, the Supreme Court’s Office of
Lawyer Regulation (OLR) investigates, and, if warranted, prosecutes the
attorney.A referee - a court-appointed
attorney or reserve judge - hears the discipline cases and makes
recommendations to the Supreme Court. The lawyer involved in this case had a
practice in Milwaukee when his license was revoked.

2009AP284-D
Office of Lawyer Regulation
(OLR) v. Eisenberg

In this attorney disciplinary proceeding,
Atty. Alan D. Eisenberg appeals from the report and recommendation of the
referee, who concluded that Eisenberg had committed five separate violations of
the Rules of Professional Conduct for Attorneys. The referee recommended that
the previously imposed revocation of Eisenberg’s license to practice law in
Wisconsin should be extended for an additional period of two years.

Some background: In a prior
disciplinary proceeding the Supreme Court revoked Eisenberg’s license to
practice law in Wisconsin, effective April 1, 2010, In re Disciplinary
Proceedings Against Eisenberg, 2010 WI 11, 322 Wis. 2d 518, 778 N.W.2d 645
(Case No. 2007AP1083-D). Before that revocation order was issued, the OLR filed
the complaint that started the current disciplinary proceeding.

The complaint against Eisenberg
in the current case involves two separate matters. In the first matter,
Eisenberg represented a man, T.H., concerning a pet dog that had been put to
sleep. T.H. and his then-wife, S.H., owned the dog during their marriage. In
early 1999 T.H. moved out of the couple’s home, and they divorced in January
2000. Before, during, and after the divorce the dog lived with S.H. and the
couple’s children. As part of the divorce, the couple entered a marital
settlement agreement (MSA) that provided that all of the personal property that
was currently in the possession of S.H. would become her sole property and that
T.H. was divested of any interest in that property.

T.H. subsequently learned that
the dog, which he still viewed as his dog, had been put to sleep. Eisenberg
agreed to represent T.H. and filed a complaint against S.H.’s mother, claiming
that the wife’s mother had taken the dog to an animal hospital and had ordered
the dog’s destruction. After the mother’s attorney obtained a copy of the
consent form showing that it had been signed by S.H., the circuit court
dismissed T.H.’s complaint against his former mother-in-law and ordered both
Eisenberg and T.H. to pay the mother-in-law’s costs and attorney fees in the
amount of $3,785.70. Eisenberg did not pay this sanction judgment until more
than six years after it had been entered.

The referee in the current
disciplinary case found that Eisenberg had knowingly advanced a frivolous
factual position in the underlying civil case, in violation of SCR
20:3.1(a)(2). The referee also found that Eisenberg’s conduct during T.H.’s
deposition and in response to the mother-in-law’s motion to compel had
constituted a failure to comply with legally proper discovery requests, in
violation of SCR 20:3.4(a) & (d). Finally, the referee concluded that
Eisenberg’s long delay in paying the sanction judgment had constituted a
knowing disobedience of a court order, in violation of SCR 20:3.4(c).

In a second matter, Eisenberg
took over the representation of a claimant in a worker’s compensation case. The
client was allegedly brought to Eisenberg by an unlicensed medical doctor who
had been working with the client at prior law firms. The referee found that at
the time the client’s claim was settled, Eisenberg sent a letter to the
administrative law judge (ALJ) that informed the ALJ of Eisenberg’s claim to a
portion of the client’s recovery as attorney fees and that stated Eisenberg had
an agreement whereby he would split his fees on a 50/50 basis with the
unlicensed doctor. When the OLR asked Eisenberg about the letter, he
acknowledged that he may have signed the letter, but denied reading the letter
prior to signing it and denied having a fee-splitting agreement with the
doctor. He then sent a second letter to the ALJ that deleted the reference to a
fee-splitting agreement with the doctor. In subsequent communications with the
OLR, Eisenberg asserted that the original letter had never been sent to the
ALJ. The original letter, bearing Eisenberg’s signature, was produced by the
ALJ at the evidentiary hearing in the disciplinary proceeding.

The referee concluded that
Eisenberg had entered into a fee-splitting agreement with a non-lawyer, which
violated SCR 20:5.4(a). The referee also found that Eisenberg’s denials of
having sent the original letter to the ALJ were false and that Eisenberg had
therefore made a false statement to the OLR in the course of an investigation,
in violation of SCR 22.03(6).

An attorney whose license has
been revoked, like Eisenberg, may not petition for the reinstatement of his/her
license until approximately five years after the date of the revocation. The
referee in the present case recommended that Eisenberg’s period of
ineligibility to seek reinstatement should be extended for an additional period
of two years.

In his appeal, Eisenberg contends
that the charges against him should be dismissed. He asserts, among other
things, that those charges are insubstantial and should not be the basis for
any additional discipline. He also argues that the charges regarding the
euthanasia of the dog occurred prior to the revocation of his license and
therefore should not give rise to additional discipline beyond the existing
revocation. Eisenberg further argues that the referee in the case was biased
against him and should have been removed. Finally, Eisenberg objects to the
OLR’s request that he should be required to pay the costs of the disciplinary
proceeding.

The Supreme Court will review the
referee’s factual findings and legal conclusions regarding the misconduct
charges. If it affirms any of the referee’s conclusions of professional
misconduct, it will determine what would be the appropriate level of
discipline.